Appeals court rejects key argument against McGahn subpoena

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A federal appeals court dealt a major setback Friday to President Donald Trump’s bid to prevent his former White House counsel Don McGahn from being forced to testify to a House committee.

The U.S. Court of Appeals for the D.C. Circuit ruled Friday, 7-2, that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena.

But the appeals court left open other legal arguments against the subpoena to McGahn, leaving it unclear when or if the former White House lawyer will actually be hauled before the House panel.

The ruling Friday also left open the issue of what questions McGahn would have to answer. In short, it increased the possibility that the House panel might get to lob questions at McGahn before the November election, but it remains doubtful lawmakers will get much in the way of revealing answers any time soon.

The Justice Department argued in the case that under the Constitution the courts should not enforce House subpoenas demanding testimony or records from Executive Branch officials.

But the D.C. Circuit majority rejected that position, drawing heavily on a Supreme Court ruling last month on separate cases involving House demands for the president’s financial records.

Writing for the majority, D.C. Circuit Judge Judith Rogers noted that McGahn’s testimony was sought in connection with the House’s efforts to pursue its constitutional power to impeach the president.

“To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information,” wrote Rogers, an appointee of President Bill Clinton.

McGahn was a central witness in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. He told investigators about Trump’s repeated attempts to sideline Mueller’s probe and create false records about it. That evidence became a key component of Mueller’s investigation into whether Trump obstructed justice.

The House intended to continue that investigation after Mueller concluded and appeared to leave the ball in Congress’ court, but efforts to secure McGahn’s testimony have been tied up in legal proceedings for a year. As the McGahn litigation dragged out, the House voted last December to impeach Trump and the Senate held a trial early this year.

Trump was acquitted, without any testimony from McGahn, but the House pressed on in court to vindicate its right to demand testimony from the former counsel.

In the new en banc ruling, the federal appeals court divided cleanly along ideological lines. All seven judges in the majority are Democratic appointees, while the two dissenters were appointed by GOP presidents.

The decision overturned a 2-1 decision a smaller panel of the same court issued in February. The Trump administration picked up no additional support for its position in Friday’s decision.

Two of the D.C. Circuit’s four Republican appointees — Greg Katsas and Neomi Rao — recused from the case, while the two judges who issued the majority opinion in February — Karen Henderson and Thomas Griffith — were the sole dissenters in the en banc ruling.

Under the terms of Friday’s decision, the case will now go back to that earlier panel to consider other arguments against the subpoena.

Justice Department spokesperson Kerri Kupec said administration lawyers “strongly disagree” with the appeals court’s ruling, but will now go back to the three-judge panel to pursue other arguments against the subpoena.

House Judiciary Chair Jerry Nadler (D-N.Y.) hailed the decision as “a profound victory for the rule of law and our constitutional system of government.”

However, Nadler’s statement acknowledged some uncertainty about how soon his panel could set a hearing to question McGahn.

“We look forward to the favorable resolution of the remaining issues before the DC Circuit in short order. In the meantime, today’s decision strikes a blow against the wall of impunity that President Trump has tried to build for himself,” the House chairman said.

The court based its decision Friday in part on White House intransigence toward the House’s impeachment investigation, noting that while prior disputes between Congress and the White House had been resolved through negotiation, Trump had flatly refused to participate, defying centuries of tradition.

“The apparently unprecedented categorical direction by President Trump that no member of the Executive Branch shall cooperate with the Committee’s impeachment investigation ... likely explains the infrequency of subpoena enforcement lawsuits such as the present one,” Rogers wrote, citing a letter from White House counsel Pat Cipollone to Speaker Nancy Pelosi last October rejecting all cooperation.

The ruling is also notable for its heavy reliance on the Supreme Court’s recent decision in a separate attempt by the House to access Trump’s financial records from his accounting firm, Mazars USA. Rogers cited the decision 16 times to explain why the House met the burden to show why McGahn must cooperate with its inquiry.

The majority also agreed with House counsel Doug Letter that the House’s long-dormant power of inherent contempt — to arrest or fine recalcitrant witnesses — is an unlikely tool for lawmakers to compel testimony.

Democrats on the House Judiciary Committee had increasingly pointed to the option as the panel grew more frustrated about resistance to its investigative authority.

“The prospect that the House will direct its Sergeant at Arms to arrest McGahn is vanishingly slim so long as a more peaceable judicial alternative remains available,” Rogers wrote.

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